Sunday, April 27, 2014

A few years ago, I posted a link to an article describing the deposition discussion regarding the definition of a photocopier. Today, the New York Times published a video dramatizing the deposition. If you can't see it below, try this link.

Friday, April 25, 2014

I just posted a long comment on the political ad in South Carolina attacking a candidate because he used to do criminal defense work (see below). Thanks to the Legal Ethics Forum, here is yet another article criticizing the ad.

In case the double negative in the title of this post is too confusing, here is the bottom line: if your case settles, tell the judge! Although the New Jersey Appellate Division did not impose sanctions, it sharply criticized counsel who had failed to timely advise the court that the case had settled. Go here for the story.

The Republican Governors Association has launched an ad campaign in support of the reelection of Gov. Nikki Haley that should be of concern to all lawyers. The campaign attacks State Senator Vincent Sheheen because he represented people accused of crimes.

This is reminiscent of the similarly shameful attacks made by politicians and others in the public eye against lawyers who represented detainees at Guantanamo or death row inmates. As you probably remember, just recently the recommendation to appoint Debo
Adegbile’s to head the Civil Rights Division of the Department of Justice was derailed because
he had represented a death row inmate when
he was a lawyer at the NAACP Legal Defense Fund. Likewise, a few years ago, Liz Cheney and others conducted a vigorous campaign against the hiring of lawyers who had represented Guantanamo detainees.

To its credit, the
South Carolina Bar Association has stepped forward to denounce the recent campaign ad. South Carolina Bar President Alice Paylor has been quoted as saying that “What they’re
attacking is the whole basis for the U.S. and the U.S. Constitution.
According to them, I guess everyone accused of something is
automatically guilty.” The ABA Journal.com has more on the story here.

Professor Jonathan Turley has commented that the trend to attack political candidates for the fact that they represented criminal defendants is a "truly vile and McCarthyist trend that seeks to punish professional working within our criminal justice system." (Interestingly, the New York Times also used a reference to McCarthyism in 2010 when discussing the attacks on Guantanamo detainee lawyers. See here).

I agree; and for that reason I am going to copy below part of my comments from 2010 when the debate over the Guantanamo detainees was going on. You can click on the dates to read the original comments and see more links.

By now I am sure you have heard the controversy and debate generated by a video that criticizes the Obama administration for hiring lawyers for the Department of Justice who had represented Guantanamo detainees in the past. The video, released by a group called Keep America Safe (whose board members include Elizabeth Cheney), questions the lawyers’ loyalty to the United States, calling the Department of Justice "Department of Jihad" and asking “Whose values do they share?"

In a way, we should not be surprised by this kind of attack since the previous administration spent a lot of efforts critizing, attacking and trying to control or punish attorneys who worked to help Guantanamo detainees. A lot of attention was given back then to comments challenging the “loyalty” of attorneys who volunteered for such work. There is a lot of literature out there you can find to get more information about that, including a short article by Jesselyn Radack called “A Blacklist’s Real Face” published in The National Law Journal on February 19, 2007 in which the author describes her own experience of retaliation after she exposed unethical conduct by lawyers in the DoJ for which she was branded a traitor and supporter of terrorism. Sounds familiar?

Now, Liz Chaney and her friends are back at it again calling the lawyers who formerly represented detainees “The Al Qaeda Seven.”

The attack on the administration and on the lawyers themselves is ... based on just plain ignorance of what it means to be a lawyer and to believe in and defend the rule of law and the Constitution. I am happy to see that it has been strongly denounced by so many so quickly, including by lawyers prominent in the previous administration.

In Liz Cheney’s world, detainees would not have any rights. She has decided they do not deserve to be afforded due process. We should create sham judicial proceedings or "kangaroo courts" that would deny due process rights in the name of expediency. In her world, we should deny rights to terrorism suspects, at least in part, because terrorists do not respect the rights of others.

But, here is the thing, that is what makes them terrorists. Liz Cheney would want us to do the same. She wants us to be more like them. It is her who is expressing anti-American values!

As I said in a previous post, I greatly admire attorneys who make a commitment to represent truly unpopular clients. It takes courage, determination and conviction and represents the best of our profession.

I commend the administration for recognizing the value of commitment to doing the right thing, to defending the rights of the accused, to defending the constitution and that which makes our legal system fair and valid.....

[The original post has the video of the ad that started the whole controversy.]

A group of well-known conservative lawyers have signed on to a letter chiding Liz Cheney as well. The letter states, in part:

"The past several days have seen a shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantánamo detainees or advocated for changes to detention policy. As attorneys, former officials, and policy specialists who have worked on detention issues, we consider these attacks both unjust to the individuals in question and destructive of any attempt to build lasting mechanisms for counterterrorism adjudications. . . . . To suggest that the Justice Department should not employ talented lawyers who have advocated on behalf of detainees maligns the patriotism of people who have taken honorable positions on contested questions and demands a uniformity of background and view in government service from which no administration would benefit. Such attacks also undermine the Justice system more broadly. In terrorism detentions and trials alike, defense lawyers are playing, and will continue to play, a key role. " . . . .

Prof Andrew Perlman (Suffolk Univ Law School) has posted a short, but very good comment on the issue (available here),
in which he argues a similar position to the one I tried to argue in my
original post on this whole affair. His argument is as follows: "We
should explicitly acknowledge and embrace the idea that lawyers who
represent unpopular clients are endorsing a particular set of values.
Those values happen to include (among others) safeguarding foundational
procedural protections, the need for quality representation in an
adversarial system, and ensuring that the government pursues its
important work within the bounds of the law. Lawyers who endorse those
values should be praised, not criticized. In fact, those lawyers are
ideally suited to work in a government department that is supposed to be
committed to the cause of justice. Liz Cheney, therefore, is right
about one thing: the work of the "al-Qaeda 7" lawyers does reflect their
value judgments. By criticizing those lawyers, however, Liz Cheney is
really criticizing the values that those lawyers embraced. And by
criticizing those values, which are so foundational to America's system
of justice, Liz Cheney (ironically) is the one who appears to be
endorsing anti-American ideals."

Meanwhile, more and more
articles, posts and op-ed pieces are getting published on this same
issue. Here is a list of some of the ones I have seen today. Because
there are so many coming out every day, rather than posting anew every
time I come accross a new article I will just add it to this list, so
keep checking this post if you want the latest.... [Go here for all those links.]

Two former Guantánamo detainee lawyers have published an article
commenting on Liz Cheney's campaign against the Dept of Justice for
employing other former detainee lawyers. The article is available here. In the article, the authors state, in part:

"Cheney
. . . should know better. She is a law school graduate and former
practicing attorney. Her video contradicts more than 200 years of legal
tradition, whereby American attorneys have served as counsel for
unpopular clients, often without fee, in order to ensure that our
country remains a place where there is "justice for all" — even those
deemed our enemies. . . . .

. . . She asks: "Whose values do they share?"

It
is hard to imagine a more reckless charge. Well, on second thought, we
can think of one. Her video is reminiscent of similar tactics used
during one of the darker episodes in American history, when Sen. Joseph
McCarthy charged that those who insisted on due process for anyone he
accused must be a Communist sympathizer or a closet enemy of the U.S. . .
. .We believe history will judge Cheney's behavior as the equivalent of
McCarthy's.

Our constitutional system of government requires
that we afford due process to defendants even in times of genuine threat
to our nation and attacks on our people. The courts depend on the
willingness of lawyers to represent those accused of crimes, although
their clients may be feared or hated. . . .

The lawyers at the
Department of Justice who appeared on behalf of Guantanamo prisoners
deserve our admiration and respect, as our country tries to resolve the
difficult issues of how we will dispense justice to those considered to
be our enemies. They certainly do not deserve to be called "al-Qaida
lawyers," be labeled disloyal and unpatriotic or be disqualified from
government service."

The ABA Journal.com is reporting today that legislation allowing the California State Bar to levy fines for unauthorized practice of law has been proposed again after having been vetoed last year. According to the story, earlier this
month, the same legislative proposal "was quietly slipped into another
bill that had been stripped of its original content, which let it skip
the committee markup process just before an 11-day break for the
legislature, the Sacramento Bee reports."

The Smithsonian Magazine has a review of an article that attempts to determine the factors that go into making a lawyer happy. According to the article it was not the prestigious lawyers, or those who did the best, or even those who made the most money who were the happiest. It was actually those who had the lowest incomes and the lowest grades in law school—most of whom were public service lawyers. The abstract of the study reads as follows:

Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained.

The ABA Journal.com is reporting that a former New Hampshire judge has been reprimanded for comments he made at a meeting with public defenders. Reportedly he said that the worsening public regard for the legal profession was due in part to the proliferation of women lawyers. According to public defenders who were present at the meeting, the judge said the legal profession risks losing respect because so many more women are becoming lawyers, that doctors are not respected in Russia because medicine is a female-dominated profession and that the teaching profession has been harmed because females are choosing careers in law over education. The ABA Journal has more details and links to more information on the story here.

Sunday, April 6, 2014

I always make a point of reminding my students that being competent includes understanding the day to day operation of law practice and the management of an office. A recent case from Nebraska illustrates this. In this case, State of Nebraska v. Sundvold, the Nebraska Supreme Court suspended an attorney for three years followed by probation for two years on reinstatement in part because he was not equipped to manage his law practice. The attorney had worked in-house for an insurance company before entering private practice and proved not to be ready for it. He did not have any experience in the financial aspects of the the practice of law. He had never negotiated a fee, handled client funds, drafted a contract for the provision of legal services, worked with a billing system or utilized a trust account. For more, go to the Legal Profession blog here.

The Illinois Attorney Registration and Disciplinary Commission recently recommended a five month suspension for a criminal defense lawyer after he posted a video of his client buying drugs on YouTube and then linked it to his Facebook page. The attorney believed the video of the undercover drug sale would exonerate his client because he claimed it showed police planting drugs on the client. However, when viewed more carefully, it appeared the video actually showed the client purchasing drugs. As a result, his client pled guilty and was sentenced to probation.

The Review Board found the attorney violated Rule 1.6(a) because he revealed information relating to the representation of a client without the informed consent of his client, Rule 1.4(a)(2) because he failed to reasonably consult with his client about the means by which the client’s objectives were to be accomplished and Rule 3.6(a) because he made extrajudicial statements that he knew or reasonably should have known would be disseminated by means of public communication and would pose a serious and imminent threat to the fairness of an adjudicative proceeding.

Saturday, April 5, 2014

On March 28, the Board of Governors of the Florida Bar approved a number of revisions to the state's rules on trust accounts. Among other things, the new rules would recognize that flat fees can be non refundable. The proposed revisions would amend Rule 4-1.5 to explicitly state that nonrefundable fees are considered earned on receipt and must not be placed in lawyers’ trust account and also providing a definition for retainers, flat fees, and advance fees. Long time readers of this blog will remember that I have posted a number of stories on the confusing state of the law in this area. See for example, here, here and here. For more information on the newly proposed changes go here.

Thursday, April 3, 2014

Next week we will begin discussing conflicts of interest in criminal law practice. Right on cue, the Legal Profession blog is reporting today on a case in which a lawyer was suspended because he had represented both a defendant husband and his cooperating wife in a drug distribution investigation and trial. The court found the conduct violated both Rule 1.7 and Rule 1.9.

The lawyer was representing the husband while representing the wife who cut a deal in exchange for testimony against the husband. For this reason, the court held that the lawyer "failed to appreciate the conflicting interests between husband and wife or to explain those conflicts to his clients and pursue the possibility or effectiveness of any waiver." For this reason, the court affirmed the finding that the lawyer had violated Rule 1.7, regardless of whether “actual prejudice” to the husband's defense occurred as a result. The case is called In re Solomon Neuhardt.